Arizona

Criminal Procedure

Criminal Procedure

Rule 33.2 – Preclusion of Remedy

(a)Preclusion. A defendant is precluded from relief under Rule 33.1(a) based on any ground:

(1) waived by pleading guilty or no contest to the offense;
(2) finally adjudicated on the merits in any previous post-conviction proceeding;
(3) waived in any previous post-conviction proceeding, except when the claim raises a violation of a constitutional right that can only be waived knowingly, voluntarily, and personally by the defendant.
(b)Claims Not Precluded.

(1)Generally. Claims for relief based on Rule 33.1(b) through (h) are not subject to preclusion under Rule 33.2(a)(3), but they are subject to preclusion under Rule 33.2(a)(2). However, when a defendant raises a claim that falls under Rule 33.1(b) through (h) in a successive or untimely post-conviction notice, the defendant must explain the reasons for not raising the claim in a previous notice or petition, or for not raising the claim in a timely manner. If the notice does not provide sufficient reasons why the defendant did not raise the claim in a previous notice or petition, or in a timely manner, the court may summarily dismiss the notice. At any time, a court may determine by a preponderance of the evidence that an issue is precluded, even if the State does not raise preclusion.
(2)Ineffective Assistance of Post-Conviction Counsel. A defendant is not precluded from filing a timely second notice requesting post-conviction relief claiming ineffective assistance of counsel in the first Rule 33 post-conviction proceeding.

Ariz. R. Crim. P. 33.2

Added by August 31, 2017, effective January 1, 2018; amended August 29, 2019, effective January 1, 2020; amended December 12, 2019, on an emergency basis, effective January 1, 2020; amended February 5, 2020, effective January 1, 2020.
Rules 32.2(b) and 33.2(b), Arizona Rules of Criminal Procedure, were amended on an emergency basis pursuant to Rule 28(h), Rules of the Supreme Court, by Order dated December 12, 2019 and on a permanent basis by Order dated February 5, 2020, effective Jan. 1, 2020.

COMMENT TO RULE 33.2(a)(1)

A pleading defendant waives all non-jurisdictional defects and defenses, including claims of ineffective assistance of counsel, except those that relate to the acceptance or validity of the plea or to the sentence. This provision is not intended to expand or contract what is waived by the entry of a plea under current case law.